Magic Words And The Missouri Supreme Court

There is, perhaps, no “advice” offered more, and more consistently, to anyone confronted by police than to shut up. Sometimes, shut the fuck up. But always with the message, do not talk to the police. As every criminal defense lawyer knows, it just don’t happen. People just can’t not talk. Even when they think they’re not talking, they claim they didn’t talk, they talked.

Lawyer: Did you answer questions, make a statement?

Defendant: No way, man. I didn’t say shit.

Prosecutor: The defendant confessed, in writing, signed and notarized, witnessed by two nuns.

The lawyer then turns to the defendant, who shrugs with that sheepish look on his face, and mumbles:

I just told them that it was that other dude who pulled the trigger when we went to rob the liquor store to get more weed money. That’s all. I didn’t say shit except for that.

But what of the defendant who listens long enough, close enough, seriously enough, to invoke his right to remain silent? As the Missouri Supreme Court en banc concluded, the failure to speak the official words that, in the minds of judges, constitute a “clear and unequivocal” assertion will doom you anyway. Or, in the parlance of the street, you’re fucked.

In the early morning hours of December 10, 2013, it was asserted that RaDonna Roland (hereinafter, “Wife”) shot Defendant in the back of the arm. Defendant fatally shot Wife and thereafter, called 911.

Not a good night at the Roland residence.

After paramedics arrived, they first attempted to treat Wife. Deputy Thorn moved Defendant into the ambulance so that he could receive treatment. Defendant was emotional, upset about Wife, and repeating that he could not believe he shot her. Deputy Devost informed Defendant of his Miranda rights. Defendant continued speaking to Deputy Devost, stating that he could not believe there was not more being done for Wife, that he could not believe Wife shot him, and explaining that he should not have shot Wife but rather should have run away. Deputy Devost requested Defendant sign a consent to search form to search his home. Defendant responded, “I ain’t signing shit without my attorney.”

But that wasn’t the end of it. Not at all.

Other detectives arrived at the scene. Deputy Devost informed them that Defendant was “in custody. He’s been read Miranda. He’s refused to sign a search without his attorney.”

There are two corrects methods of invoking rights after being Mirandized, The first is the mere refusal to answer a question. While it’s the simplest response, it has a hidden flaw. A defendant can change his mind and choose to talk. Sometimes that happens after some subtle persuasion by the cops. Sometimes it happens when a defendant invokes, then can’t stop himself from yammering.

The second method is the invocation of the right to counsel, rather than just refusal to answer questions. This is the theoretically better method, as once right to counsel is invoked, it can’t be uninvoked without counsel’s approval. Most lawyers are disinclined to do so.

The state argues that Defendant did not unequivocally assert his Fifth Amendment right to counsel when he refused to sign the consent to search form. Further, the state maintains that other than refusing to sign the consent to search form, Defendant communicated with the police and never invoked his right to counsel.

To successfully invoke the right to counsel, the suspect’s desire to have an attorney present during his or her custodial interrogation must be sufficiently clear so that a reasonable police officer would understand that the suspect is invoking his or her right to have an attorney present during the interrogation.

See what they did there? The invocation must be “sufficiently clear so that a reasonable police officer would understand.” As bars go, it doesn’t get much lower.

Deputy Devost never questioned Defendant. Based on the circumstances here, a reasonable police officer would not have understood Defendant’s statement refusing to sign the consent to search form to be an invocation of his Fifth Amendment right to counsel.

In other words, the “without my attorney” only referred to his signing the consent form, not the refusal to subject himself to custodial interrogation. After all, didn’t Roland specifically say “I ain’t signing shit,” not “I want my attorney”? What more could you possibly expect of a reasonable police officer? They’re not mind readers, you know.

The next day, Detective McElroy sought to interrogate Defendant after again reading Defendant his Miranda rights. Defendant again indicated his willingness to speak with Detective McElroy. Because Defendant did not invoke his right to counsel clearly and unequivocally after being read his Miranda rights by Deputy Devost or Detective MCElroy, Detective McElroy’s interrogation of Defendant was proper.

An ungenerous interpretation of Roland’s words? Cynical minds might view a ruling like this as directed toward making sure Roland’s interrogation isn’t suppressed. After all, suppression of his statements could make it harder to convict him for the killing of his wife, and that would make the police, prosecutors and judges sad.

And it’s not as if judges are incapable of being generous. After all, police officers manage to enjoy their fuzzy approval regularly, whether wrong on facts or law, despite the significance of their “training and experience” that allows judges to believe their wildest assumptions while forgiving their must idiotic errors. Generous to a fault, those judges can be.

But when it comes to the words uttered by suspects, expectations are far more demanding, far less forgiving. After all, it’s not as if their heads have been filled with an academy’s worth of specialized training in how to perform their duty as citizens by properly invoking their constitutional rights. Is it too much to expect the guy on the street to announce his intentions with the right words, clearly and unequivocally enough to satisfy the court, so that a reasonable cop would get it?

My thinking after seeing the Salinas decision from the Supreme Court was that yes, the guy on the street will need “an academy’s worth of specialized training” in order to invoke his constitutional rights. And looks like we’re seeing the inevitable afterbirth (though it appears that the MO Supremes didn’t cite Salinas, the mentality is still there).

For a very long time, I’ve urged people to learn how to properly invoke their rights. Alito’s Salinas opinion didn’t surprise me; the need for an affirmative invocation, while completely missing the point, seemed exactly the sort of nonsense courts would demand. But it’s a giant leap from silence to magic words. But judges do so love magic words.

And is the number 42 in your Salinas opinion reference coming from “The Hitchhiker’s Guide to the Galaxy” by Douglas Adams? Which number is the: ‘ “Answer to the Ultimate Question of Life, the Universe, and Everything”, calculated by an enormous supercomputer named Deep Thought over a period of 7.5 million years. Unfortunately, no one knows what the question is.’

I may not speak for anyone else, but I, for one, appreciate not only your mastery of the obvious reference, but need to go the extra step and explain it’s derivation in detail for the benefit of anyone with an intellectual challenge that makes him look up with envy to a grapefruit. You da man.

It makes sense that the right must be invoked, but a guessing game is wrong. What words count as “an unambiguous and specific request for counsel”?

For example, “I wish to invoke my fifth amendment right to not participate in any and all communications without counsel present”? Too many words? Not enough? Is “communications” too vague a description?

If I printed the statement on cards and handed it out to an officer, would that work? The communication is non-verbal, but is more permanent. How big would the type have to be? Will 12 point type work, or should I go with 20 in case the officer needs glasses to read?

Only if Miranda included, “and if you want to invoke your right to counsel, say ‘Lawyer, please,’ and we will stop asking you questions until you have had an opportunity to seek the advice of counsel.” Rights aren’t contingent on secret magic words.

Ohio Supreme Court just this morning, in affirming Steven Cepec’s conviction and death sentence (and you can tell from the first 4 words that things weren’t going to end well:

“Later in the interview, Detective Samo Mernik asked Detective Davis to get his Luminol light to check Cepec’s hands for blood. . . . “While Detective Davis was out of the interview room, Cepec asked about the light. Detective Mernik explained its general function, after which the following exchange occurred: “Cepec: ‘Well, before you use it, can I have a lawyer here?’ “Mernik: ‘No, I don’t think we need one for that. If you didn’t do nothing, why do you need a lawyer?'” Several more hours of confession apparently followed. And more the next day after yet another Miranda warning.

But, of course, he only wanted a lawyer for the Luminal – which was a calculated lie, anyhow.

The court then set his execution for (I’m not making this up and it’s not a typo) March 24, 2021!

Scott H. Greenfield

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